• Login
    View Item 
    •   Home
    • Yale Law School Faculty Scholarship
    • Faculty Scholarship Series
    • View Item
    •   Home
    • Yale Law School Faculty Scholarship
    • Faculty Scholarship Series
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of openYLSCommunitiesPublication DateAuthorsTitlesSubjectsThis CollectionPublication DateAuthorsTitlesSubjects

    My Account

    LoginRegister

    Statistics

    Display statistics

    Remedies and Resistance

    • CSV
    • RefMan
    • EndNote
    • BibTex
    • RefWorks
    Thumbnail
    Name:
    Remedies_and_Resistance.pdf
    Size:
    6.512Mb
    Format:
    PDF
    Download
    Author
    Gewirtz, Paul
    
    Metadata
    Show full item record
    URI
    http://hdl.handle.net/20.500.13051/977
    Abstract
    Law mediates between the ideal and the real. American constitutional law, in particular, is a realm of idealization tempered by the claims of a resistant, unruly reality. This is an essay about the mediating nature of American constitutional law, the ambivalence built into an activity that aspires both to give meaning to ideals and to be effective in the real world. Inescapably, this dual aspiration affects both the interpretation of rights and the implementation of remedies when rights are violated, but this essay concerns remedies, the area of judicial activity that most clearly embodies the tension between the ideal and the real. The function of a remedy is to "realize" a legal norm, to make it a "living truth." While most legal theory concentrates on the ideal, the hard stuff of recalcitrant reality is equally important to jurisprudence. This essay looks towards a jurisprudence of the remedial—which in large measure must be a jurisprudence of deficiency, of what is lost between declaring a right and implementing a remedy. My immediate subject is the problem of fashioning judicial remedies for racial segregation in schools, in particular how the courts have faced the problem of white resistance to desegregation decrees. I focus on two moments. The first is 1955, when the Supreme Court of the United States declined to order the immediate desegregation of unlawfully segregated schools, approving instead the imperfect remedy of gradual desegregation under the standard of "all deliberate speed." The second moment is today, when the courts are considering responses to the phenomenon of "white flight," including the possibility of limiting integration remedies in order to encourage whites to remain within a desegregating school system. The intellectual and practical problem posed in each situation is whether and how the law should adjust its remedial aspiration in the face of a resistant reality—in particular, under what conditions and premises, if any, public opposition to a legal rule may properly be the basis for limiting judicial remedies for its violation. It may at first seem wholly illegitimate for courts to take account of resistance, since doing so appears to deny the very right that the court has affirmed. But, as I argue in this essay, resistance cannot be ignored. Among the difficulties—indeed, the anguish—necessarily endured by those seeking to produce change in the world is that at times they must cede ground because of opposition. Remedies for violations of constitutional rights are not immune from that reality.
    Collections
    Faculty Scholarship Series

    entitlement

     
    DSpace software (copyright © 2002 - 2023)  DuraSpace
    Quick Guide | Contact Us
    Open Repository is a service operated by 
    Atmire NV
     

    Export search results

    The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

    By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

    To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

    After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.